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Caldwell v. Gurley Ref. Co.

Citation: 12 ELR 20759
No. No. J-C-79-101, 533 F. Supp. 252/(E.D. Ark., 02/11/1982) Dismissing EPA as defendant

The court holds that it lacks jurisdiction under the citizen suit provision of the Federal Water Pollution Control Act (FWPCA) to compel the Environmental Protection Agency (EPA) to issue compliance orders relating to discharges from defendant's disposal pit. Section 505 of the FWPCA authorizes citizen suits against EPA upon the Administrator's failure to perform a non-discretionary duty. On the basis of the legislative history, statutory language, and practical considerations, however, the court concludes that the issuance of compliance orders against polluters by the Administrator under §309 of the FWPCA is a discretionary function and may not be compelled by a citizen suit. In addition, the court finds that jurisdiction is not conferred by the Declaratory Judgment Act and that plaintiff's invocation of federal question jurisdiction does not establish jurisdiction where the requirements of the FWPCA's citizen suit provisions are not met.

Counsel for Plaintiff
Charles R. Nestrud
House, Holmes & Jewell
1550 Tower Bldg., Little Rock AR 72201
(501) 375-9151

Counsel for Defendant
Elton A. Rieves
Rieves, Rieves & Shelton
P.O. Box 1359, West Memphis AR 72301
(501) 735-3420

Diane S. Mackay, Ass't U.S. Attorney
P.O. Box 1229, Little Rock AR 72203
(501) 378-5342